P a g e | 1 MA No.124/Mum/2023 (ITA No.1924/Mum/2021) Income Tax Officer-22(1)(1) Vs. M/s Flag Security Services IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER M .A . No . 1 2 4 / M u m / 2 0 2 3 ( A .Y. 2 0 1 8-19) I n c om e T a x Of f i cer-2 2( 1 ) ( 1) , R o o m N o. 6 1 9, Pi r a ma l Ch am b er s, P ar e l , M u m ba i – 400012 Vs. M/ s Fl ag S e c ur i t y S e r v i ce s, 1 0 1, N av j y ot C HS , N e ar K a da mw a di , S t . A n t h on y S t r eet , Va k o l a, S an t a cr uz E a st , M u m ba i – 4 0 0 0 9 8 स्थायी लेखा सं./जीआइआर सं./P A N/ GI R N o: A A A FF7581M Appellant .. Respondent [[ I T A No .1 9 2 4 / M u m / 2 0 2 1 ( A .Y . 2 0 1 8-19) M/ s Fl ag S e c ur i t y S e r v i ce s, 1 0 1, N av j y ot C HS , N ear K a d am w a d i , S t . An t h o n y S t r e et , Va k o l a, S a n t a cr uz E ast , M u m ba i – 4 0 0 0 9 8 Vs. I n c om e T a x Of f i cer-W ar d 2 3( 1 )- 3, G ov er n m en t of I n di a, Mi n i st r y of Fi n an c e I n c o m e T a x D e par t m en t N at i on al Fa c el es s A p p ea l Ce n t r e ( NF A C ) स्थायी लेखा सं./जीआइआर सं./P A N/ GI R N o: A A A FF7581M Appellant .. Respondent Appellant by : Samuel Pitta Respondent by : Viraj Mehta D at e of H e ar i n g 30.06.2023 D at e of Pr o n o un ce m en t 30.06.2023 आदेश / O R D E R Per Amarjit Singh (AM): Vide M.A. No.124/Mum/2023 the revenue seek to recall the order of the ITAT vide ITA No.1924/Mum/2021. The revenue submitted that Tribunal vide ITA No. 1924/Mum/2021 has allowed the claim of the assesse with respect to deduction pertaining to amount deposited towards employee’s contribution to PF/ESIC beyond the due date for payment as specified in the PF/ESIC Act but paid before the due date of filing the return of income after following the decision of Hon’ble jurisdictional High Court in the case of CIT Vs. Hindustan Organics Chemical Ltd. (2014) 366 ITR 1 (Bom) and CIT Vs. Ghatge Patil Transport Ltd. (2014) 368 ITR 749 (Bom). In this regard, it is submitted that Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. P a g e | 2 MA No.124/Mum/2023 (ITA No.1924/Mum/2021) Income Tax Officer-22(1)(1) Vs. M/s Flag Security Services Vs. CIT-1 Civil Appeal No. 2833 of 2016 dated 12.10.2022 held that if the employer did not deposit the amount towards employees contribution on or before the due date as prescribed in the EPF/ESIC the assessee was not entitled to the deduction. 2. Heard both the sides and perused the material on record. We consider that the Hon’ble Supreme Court vide the decision referred as supra set at rest the entire controversy wherein it is held that employer have to deposit the employee’s contribution towards PF/ESIC on or before the due date prescribed in the respective law for availing the deduction. Therefore, considering the decision of Hon’ble Supreme Court as referred supra we recall the impugned orders of the Tribunal and the same are adjudicated as follows. ITA Nos. 1924/Mum/2021 3. The fact in brief is that AO made adjustment in the intimation passed assessment u/s 143(1) of the Act by way of disallowance of delayed remittance of employee’s contribution to PF/ESI to the amount of Rs.17,52,805 /- for assessment year 2018-19 on the ground that same was paid beyond the due date. 4. The assesse filed the appeal before the ld. CIT(A). However, the ld. CIT(A) has dismissed the appeal of the assessee. 5. During the course of appellate proceedings before the ITAT the assessee has referred the decision of Hon’ble Jurisdictional High Court in the case of Ghatge Patil Transport Ltd (2015) 53 taxman.com 141 (Bom) and the decision in the case of CIT Vs. Hindustan Organics Chemical Ltd. (2014) 48 taxman.com 421 (Bom) and other decisions. 6. Heard both the sides and perused the material on record. We consider that the cases referred by the assesse are of no help in view of the judgment of the Hon’ble Supreme Court in the case of Checkmate P a g e | 3 MA No.124/Mum/2023 (ITA No.1924/Mum/2021) Income Tax Officer-22(1)(1) Vs. M/s Flag Security Services Services Pvt. Ltd. Vs. CIT-1 Civil Appeal No. 2833 of 2016 dated 12.10.2022 wherein it is held that it is essential condition for allowing the impugned deduction that such amounts are deposited within the due date as prescribed in the specified Act. If the employer did not deposit the amount towards employee’s contribution on or before the due date as prescribed under the EPF/ESIC Act, the assessee was not entitled to deduction. We consider that vide the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. the entire controversy is set at rest wherein it is held that employer have to deposit the employee’s contribution towards EPF/ESIC on or before the ‘due date’ under the respective Acts. Therefore, following the decision of the Hon’ble Supreme Court (supra) we restore this issue to the file of assessing officer for deciding afresh in accordance with the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd., therefore, the appeal filed by the assessee are treated as allowed for statistical purposes. 7. In the result, the miscellaneous application filed by the revenue are allowed and the appeals filed by the assesse are treated allowed for statistical purposes. Order pronounced in the open court on 30.06.2023 Sd/- Sd/- (Vikas Awasthy) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 30.06.2023 Rohit: PS P a g e | 4 MA No.124/Mum/2023 (ITA No.1924/Mum/2021) Income Tax Officer-22(1)(1) Vs. M/s Flag Security Services आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.